UNILATERAL CONVERSION OF A CHILD'S RELIGION AND PARENTAL RIGHTS IN MALAYSIA

• Citation: (2012) 24 SAcLJ 92
• Published date: 01 December 2012
• Author: KUEK Chee Ying LLB (Hons) (University of Malaya), LLM (University of Malaya); Lecturer, Faculty of Business and Law, Multimedia University. TAY Eng Siang LLB (Hons) (University of Malaya), LLM (Distinction) (University of Malaya); Lecturer, Faculty of Business and Law, Multimedia University.
• Date: 01 December 2012

The issue of unilateral conversion of a child to Islam by one parent who has embraced Islam and the subsequent tussle over the custody of the child between the disputing parents in the civil court and the Syariah Court has of late ignited controversy in Malaysia. This article seeks to examine the extent of the non-Muslim parent's right to determine the child's religion, the impact of the unilateral conversion of the child to Islam on the parents' custodial right in a family dispute and how the existing legal and judicial systems in Malaysia can be strategically used to achieve one's aim.

I. Introduction

1 Malaysia is a multi-ethnic and multi-religious country.1 The Federal Constitution of Malaysia guarantees freedom of religion where every person is granted the right to profess and practise, and, subject to certain restrictions,2 to propagate his or her religion.3 Though not

expressly stated, it may be implied that such right shall include the right to change one's religion or belief. Otherwise, it will render the freedom of religion as enshrined in Art 11 of the Federal Constitution illusory or ineffective4 and fall short of the international human rights standards.5 However, the religion of a person under the age of 18 years shall be decided by his or her parent or guardian.6

2 The issue of unilateral conversion of a child to Islam by one parent who has embraced Islam has of late ignited controversy in Malaysia. The problem is compounded when the disputing parents commence the legal tussle over the custody of the child in the civil court and Syariah Court respectively. Indeed, legal pluralism in Malaysia is reflected by the dual legal system of civil and Syariah. The civil courts being courts of general jurisdiction administer laws which are of general application. On the other hand, the Syariah Courts administer Islamic laws as contained under the various enactments passed by the state legislatures, which are applicable to persons professing the religion of Islam.7 In other words, the Syariah Courts do not have jurisdiction where one of the parties involved is a non-Muslim.8

3 Questions arise as to what extent a non-Muslim parent has the right to determine the religion of the child if the spouse embraces Islam and the impact of the child's conversion to Islam on the custody dispute between the parents. Such questions, if left unattended, will lead to social tension and disintegrate the religious cohesion in the country, which is detrimental to the national unity.

4 This article seeks to examine this legal muddle arising out of the competing interpretation of the Constitution and related laws, the dual legal and court system in Malaysia as well as the litigation strategy which might be employed to achieve one's aim in such custody dispute.

II. Conversion to Islam of one spouse and the child's religion

5 Non-Muslim marriages in Malaysia are governed by the Law Reform (Marriage and Divorce) Act 1976 (“LRA”).9 The LRA specifically excludes its application to Muslims, except where a petition for divorce is filed by the non-converting spouse against the converted spouse on the ground of conversion to Islam as provided in s 51 of the LRA. Hence, conversion to Islam of one spouse can be a ground for the non-converting spouse to petition for divorce and seek ancillary relief.10

6 However, it is observed that the Islamic law as contained in the various state enactments and the federal statute have distinguished the parental right over a child's religion based on the religion of the parents, particularly the converted parent, at the time the child is born. It seems that the non-converting parent has no right to determine the child's religion if such child is born after another spouse embraces Islam and

the civil marriage has not been dissolved. This is because the various state enactments in Malaysia define “Muslim” as, inter alia, “a person either or both of whose parents were at the time of the person's birth, a Muslim”.11

7 In other words, a child who is born after one of his or her parents converts to Islam will automatically be a Muslim within the meaning of the relevant state enactments and the federal statute. It operates by way of law and not by the personal choice of the parents especially the non-Muslim parent. It appears that there is no reported case which challenges the constitutionality of the said provision, in the context of equality between the parents of different religions, one of whom is a Muslim.12

8 The issue of parental right over the religion of a child who is born before one of his or her parents converts to Islam is not free from dispute either.

9 Article 12(4) of the Federal Constitution provides that the religion of a person under the age of 18 years shall be decided by his parent or guardian. The Islamic law as embodied in the majority of the state enactments and the federal statute provides, inter alia, that a person who is not a Muslim may convert to the religion of Islam if he is of sound mind and if he has not attained the age of 18 years, his parent or guardian consents to his conversion.13 It is interesting to note that prior to the repeal of the Administration of Islamic Law Enactment 199214 in Sabah, a person who was below 18 years of age had to obtain the consent from the parents or his guardian in order for him to convert to Islam.15 The difference between the word “parent” and “parents”, if

any, used in the Federal Constitution and the state enactments will be discussed later in this article.

10 In the state of Pahang, a child of a muallaf16 (whether the muallaf is a male or female) who is below 18-years-old and who has been ordered by a court, other than the Syariah Courts, to be in the custody of the muallaf, and if the muallaf decides that the child be converted to Islam, the said child becomes converted to Islam at the time the custody was granted.17 This means that the custody of the child must be granted to the muallaf by the civil court, and then only the muallaf may decide whether to convert the child to Islam.

III. Consent of “parent” or “parents”

11 The conflict of choice of religion for a child by the parents boils down to the interpretation of Art 12(4) of the Federal Constitution and the provision on conversion to Islam of a minor child as provided in the above-mentioned state enactments. Malaysian civil courts in recent cases involving this issue seemed to move from the purposive interpretation approach18 to the literal interpretation approach,19 where a single parent who has embraced Islam was held to have the right to unilaterally convert a child to Islam without the knowledge or consent of the other non-Muslim parent.

12 In Chang Ah Mee v Jabatan Hal Ehwal Agama Islam, Majlis Ugama Islam Sabah20 (“Chang Ah Mee”), the father converted to the Islamic faith and later converted the two-year-old daughter without the consent of the mother. The mother applied for a declaration that the conversion of her daughter be declared null and void. Pursuant to s 68 of the Sabah Administration of Islamic Law Enactment 1992, a person who is below 18 years of age may convert to Islam provided that consent shall be obtained from the parents or his guardian. Justice Ian Chin noticed the term “parents” as mentioned in the Enactment is in the plural which literal and ordinary interpretation means the father and

the mother while the singular form would mean either the father or the mother. Following the amendment to the Guardianship of Infants Ordinance21 in 1999, both the father and the mother have the same and equal right over the person and property of an infant.22 Such equal right is illusory unless it means that the husband and wife must exercise them jointly. In other words, it cannot be exercised by one only without the other save when the other has died. Justice Ian Chin later acknowledged that Art 12(4) of the Federal Constitution speaks of “parent” in the singular form but the learned judge refused to interpret it literally. The learned judge justified it by stating that the Federal Constitution does not discriminate against the gender. Since the father and mother have equal right over the person and property of an infant, the term “parent” in Art 12(4) must necessarily mean both the father and the mother if both are alive. To allow just the father or the mother to choose the religion of the child would invariably mean depriving the other of the constitutional right under Art 12(4). Thus, the High Court of Sabah and Sarawak (Sandakan) declared that the conversion of the minor was null and void. It seems that the court, in interpreting Art 12(4) of the Federal Constitution, was adopting a purposive approach in which the spirit of the law prevailed over the literal meaning of the law.

13 However, Chang Ah Mee was not followed in subsequent cases. The Kuala Lumpur High Court in Shamala Sathiyaseelan v Dr Jeyaganesh Mogarajah23 took a literal approach in interpreting Art 12(4). The brief facts are that the husband had converted to Islam and he had also converted his two minor children. The wife applied to the civil High Court for a declaration that the conversion of her two children to Islam by the husband without her knowledge and consent was null and void. Chang Ah Mee was cited to support her case and reference was also made to s 95(b) of the Administration of Islamic Law (Federal Territories) Act 199324 as well as s 5 of the Guardianship of Infants Act 1961.25

14 The civil High Court found that on a construction of Art 12(4) of the Federal Constitution, read in conjunction with s 95(b) of the Administration of Islamic Law (Federal Territories) Act 1993, both of which use the singular word “parent”, the consent of a single parent was enough to validate the conversion of a minor to Islam. Furthermore, s 5 of the Guardianship of Infants Act 1961 did not apply to the husband in the present case as he had become a Muslim. The court also distinguished...